The Growth of the English Constitution

I have referred more than once to the picture of our race in its earliest recorded times, as set before us by the greatest of Roman historians in the Germany of Tacitus. Let me now set before you some special points of his description in his own words as well as I am able to clothe them in an English dress23.

“They choose their Kings on account of their nobility, their leaders on account of their valour. Nor have the Kings an unbounded or arbitrary power, and the leaders rule rather by their example than by the right of command; if they are ready, if they are foreward, if they are foremost in leading the van, they hold the first place in honour… On smaller matters the chiefs debate, on greater matters all men; but so that those things whose final decision rests with the whole people are first handled by the chiefs… The multitude sits armed in such order as it thinks good; silence is proclaimed by the priests, who have also the right of enforcing it. Presently the King or chief, according to the age of each, according to his birth, according to his glory in war or his eloquence, is listened to, speaking rather by the influence of persuasion than by the power of commanding. If their opinions give offence, they are thrust aside with a shout; if they are approved, the hearers clash their spears. It is held to be the most honourable kind of applause to use their weapons to signify approval. It is lawful also in the assembly to bring matters for trial and to bring charges of capital crimes… In the same assembly chiefs are chosen to administer justice through the districts and villages. Each chief in so doing has a hundred companions of the commons assigned to him, as at once his counsellors and his authority. Moreover they do no matter of business, public or private, except in arms.”

Here we have a picture of a free commonwealth of warriors, in which each freeman has his place in the state, where the vote of the general Assembly is the final authority on all matters, but where both hereditary descent and elective office are held in high honour. We see also in a marked way the influence of personal character and of the power of speech; we see the existence of local divisions, local assemblies, local magistrates; in a word, we see in this picture of our forefathers in their old land, seventeen hundred years ago, the germs of all the institutions which have grown up step by step among ourselves in the course of ages. And a Swiss of the democratic Cantons would see in it, not merely the germs of his constitution, but the living picture of the thing itself.

This immemorial Teutonic constitution was thus the constitution of our forefathers in their old land of Northern Germany, before they made their way into the Isle of Britain. And that constitution, in all its essential points, they brought with them into their new homes, and there, transplanted to a new soil, it grew and flourished, and brought forth fruit richer and more lasting than it brought forth in the land of its earlier birth. On the Teutonic mainland, the old Teutonic freedom, with its free assemblies, national and local, gradually died out before the encroachments of a brood of petty princes24. In the Teutonic island it has changed its form from age to age; it has lived through many storms and it has withstood the attacks of many enemies, but it has never utterly died out. The continued national life of the people, notwithstanding foreign conquests and internal revolutions, has remained unbroken for fourteen hundred years. At no moment has the tie between the present and the past been wholly rent asunder; at no moment have Englishmen sat down to put together a wholly new constitution in obedience to some dazzling theory. Each step in our growth has been the natural consequence of some earlier step; each change in our law and constitution has been, not the bringing in of anything wholly new, but the developement and improvement of something that was already old. Our progress has in some ages been faster, in others slower; at some moments we have seemed to stand still, or even to go back; but the great march of political developement has never wholly stopped; it has never been permanently checked since the day when the coming of the Teutonic conquerors first began to change Britain into England. New and foreign elements have from time to time thrust themselves into our law; but the same spirit which could develope and improve whatever was old and native has commonly found means sooner or later to cast forth again whatever was new and foreign. The lover of freedom, the lover of progress, the man who has eyes keen enough to discover real identity under a garb of outward unlikeness, need never shrink from tracing up the political institutions of England to their earliest shape. The fourteen hundred years of English history are the possession of those who would ever advance, not the possession of those who would stand still or go backwards. The wisdom of our forefathers was ever shown, not in a dull and senseless clinging to things as they were at any given moment, but in that spirit, the spirit alike of the true reformer and the true conservative, which keeps the whole fabric standing, by repairing and improving from time to time whatever parts of it stand in need of repair or improvement. Let ancient customs prevail25; let us ever stand fast in the old paths. But the old paths have in England ever been the paths of progress; the ancient custom has ever been to shrink from mere change for the sake of change, but fearlessly to change whenever change was really needed. And many of the best changes of later times, many of the most wholesome improvements in our Law and Constitution, have been only the casting aside of innovations which have crept in in modern and evil times. They have been the calling up again, in an altered garb, of principles as old as the days when we get our first sight of our forefathers in their German forests. Changed as it is in all outward form and circumstance, the England in which we live, has, in its true life and spirit, far more in common with the England of the earliest times than it has with the England of days far nearer to our own. In many a wholesome act of modern legislation, we have gone back, wittingly or unwittingly, to the earliest principles of our race. We have advanced by falling back on a more ancient state of things; we have reformed by calling to life again the institutions of earlier and ruder times, by setting ourselves free from the slavish subtleties of Norman lawyers, by casting aside as an accursed thing the innovations of Tudor tyranny and Stewart usurpation.

I have said that the primæval Teutonic constitution was brought with them by our Teutonic forefathers when they came as conquerors into the Isle of Britain. I will not again go into the details of the English Conquest, the settlement which gave us a new home in a new land, nor into all the questions and controversies to which the details of the English Conquest have given rise. I have spoken of them over and over again with my voice and with my pen, and I hope I may now take for granted what I have fully argued out elsewhere26. I hope that I may be allowed to assume the plain facts of the case, without going through the details of every point. I will assume then – for it is that to which the question really comes – that England is England and that Englishmen are Englishmen. I will assume that we are not Romans or Welshmen, but that we are the descendants of the Angles, Saxons, and Jutes who came hither in the fifth and sixth centuries, of the Danes and Northmen who came hither in the ninth. I will assume that we are a people, not indeed of unmixed Teutonic blood – for no people in the world is of absolutely unmixed blood – but a people whose blood is not more mixed than that of any other nation; that Englishmen are as truly Englishmen as Britons are Britons or as High-Germans are High-Germans. I will assume that what is Teutonic in us is not merely one element among others, but that it is the very life and essence of our national being; that whatever else we may have in us, whatever we have drawn from those whom we conquered or from those who conquered us, is no coordinate element, but a mere infusion into our Teutonic essence; in a word I will assume that Englishmen are Englishmen, that we are ourselves and not some other people. I assume all this; if any man disputes it, if any man chooses not to be an Englishman but to be a Welshman or a Roman, I cannot argue with him now; I can only ask him to turn to the arguments which I have urged on all those points in other times and places. I assume that, as we have had one national name, one national speech, from the beginning, we may be fairly held to have an unbroken national being. And when we find a Teutonic-speaking people in Britain living under the same political and social forms as the Teutonic-speaking people of the mainland, it is surely no very rash or far-fetched inference that the tongue and the laws which they have in common are a common possession drawn from a common source; that the island colony in short came itself, and brought its laws and language with it, from the elder mother-land beyond the sea.

Our fathers then came into Britain, and they brought with them the same primæval political system, the same distinctions of rank, the same division of political power, which they had been used to in their elder Anglian and Saxon homes. The circumstances of the Conquest would no doubt bring about some changes. It would probably tend to increase the numbers of the class of slaves. Such of the natives as were neither slain nor driven out would of course pass into that class. Especially, though there is no doubt that our forefathers brought their women with them from their own homes, there is no doubt that many British women passed into bondage, so much so that one of the common Old-English names for a female slave is Wylne or Welshwoman27. And we may infer that this increased familiarity with slavery would tend to strengthen the custom by which freemen guilty of crimes were reduced to slavery by sentence of law. Again, I suspect that the circumstances of the Conquest did something to raise the position both of the common freeman and of the King or leader, as compared with the intermediate class of nobles. No two things are more levelling than colonization and successful warfare. The levelling effect of colonization is obvious; the levelling effect of warfare is not so obvious in modern times. In modern armies, where there is a strictly defined system of military ranks, where the distinction of officer and private is broadly drawn, where the private soldier is little more than a machine in the hands of his commander, the effect may even be the other way. But in an earlier state of things, where victory depends on the individual prowess of each man, nothing can be more levelling than warfare. Honour and profit fall to the lot of the stoutest heart and the strongest arm, whether their owner be noble or peasant in his own land. And this would be still more the case when war and colonization went hand in hand, when success brought not only victory but conquest, when men fought, not to go back loaded with glory and plunder to their old homes, but to win for themselves new homes as the reward of their valour. On the other hand, in an early state of things personal influence is almost everything; a vigorous and popular ruler is practically absolute, because no one has the wish to withstand his will, but a weak or unpopular ruler can exercise no authority whatever. In such a state of things as this no one can so easily gain the authority of unbounded influence as the military chief who leads his tribe to victory. And again, that influence would be increased tenfold when the successful chief led them not only to victory but to conquest, when he was not only a ruler but a founder, the man who had led his people to win for themselves a new land, to create a new state, the prize of his sword and of theirs. Mere nobility of birth, however highly honoured, would be but a feeble influence compared with either of these influences above and below it. I think that we may trace something of the results of these influences in the position of the oldest English nobility. That there was a difference between the noble and the common freeman, in Old-English phrase between the Eorl and the Ceorl28, is shown by countless allusions to the distinction in our earliest records. But it is by no means easy to say what the distinction really was. And, as we shall presently see that this primitive nobility gradually gave way to a nobility of quite another kind and founded on quite another principle, we may perhaps be inclined to think that, at least after the settlement of the English in Britain, the privileges of the Eorlas were little more than honorary. I need hardly say that a traditional deference for high birth, a traditional preference for men of certain families in the disposal of elective offices, may go on when birth carries with it no legal privilege whatever. Nowhere has this been more strikingly shown than in those democratic Cantons of Switzerland of which I have already spoken. In a commonwealth where magistrates were chosen yearly, where every freeman had an equal vote in their choice, it still happened that, year after year, the representatives of certain famous houses were chosen as if by hereditary right. Such were the Barons of Attinghausen in Uri and the house of Tschudi in Glarus29. And, whatever we say of such a custom in other ways, it was surely well suited to have a good effect on the members of these particular families; it was well suited to raise up in them a succession of men fitted to hold the high offices of the commonwealth. A man who knows that, if he be at all worthy of a certain post of honour, he will be chosen to it before any other man, but who also knows that, if he shows himself unworthy of it, he may either fail to attain it at all or may be peacefully removed from it at the end of any twelvemonth, is surely under stronger motives to make himself worthy of the place which he hopes to fill than either the man who has to run the chance of an unlimited competition or the man who succeeds to honour and authority by the mere right of his birth.

Our fathers then came into Britain, bringing with them the three elements of the primitive constitution which we find described by Tacitus; but as I am inclined to think, the circumstances of the Conquest did something, for a while at least, to strengthen the powers both of the supreme chief and of the general body of the people at the expense of the intermediate class of Eorlas or nobles. Let us first trace the origin and growth of the power of the supreme leader, in other words, the monarchic element, the kingly power. What then is a King? The question is much more easily asked than answered. The name of King has meant very different things in different times and places; the amount of authority attached to the title has varied greatly in different times and places. Still a kind of common idea seems to run through all its different uses; if we cannot always define a King, we at least commonly know a King when we see him. The King has, in popular sentiment at least, a vague greatness and sanctity attaching to him which does not attach to any mere magistrate, however high in rank and authority. I am not talking of the reason of the thing, but of what, as a matter of fact, has at all times been the popular feeling. Among the heathen Swedes, it is said that, when public affairs went wrong, – that is, in the state of things when we should now turn a Minister out of office and when our forefathers some generations back would have cut off his head, – they despised any such secondary victims, and offered the King himself in sacrifice to the Gods30. Such a practice certainly implies that our Scandinavian kinsfolk had not reached that constitutional subtlety according to which the responsibility of all the acts of the Sovereign is transferred to some one else. They clearly did not, like modern constitution-makers, look on the person of the King as inviolable and sacred. But I suspect that the very practice which shows that they did not look on him as inviolable shows that they did look on him as sacred. Surely the reason why the King was sacrificed rather than any one else was because there was something about him which there was not about any one else, because no meaner victim would have been equally acceptable to the Gods. On the other hand – to stray for a moment beyond the range of Teutonic and even of Aryan precedent – we read that the ancient Egyptians forestalled the great device of constitutional monarchy, that their priests, in a yearly discourse, dutifully attributed all the good that was done in the land to the King personally and all the evil to his bad counsellors31. These may seem two exactly opposite ways of treating a King; but the practice of sacrificing the King, and the practice of treating the King as one who can do no wrong, both start from the same principle, the principle that the King is, somehow or other, inherently different from everybody else. Our own Old-English Kings, like all other Teutonic Kings, were anything but absolute rulers; the nation chose them and the nation could depose them; they could do no important act in peace or war without the national assent; yet still the King, as the King, was felt to hold a rank differing in kind from the rank held by the highest of his subjects. Perhaps the distinction mainly consisted in a certain religious sentiment which attached to the person of the King, and did not attach to the person of any inferior chief. In heathen times, the Kings traced up their descent to the Gods whom the nation worshipped; in Christian times, they were distinguished from lesser rulers by being admitted to their office with ecclesiastical ceremonies; the chosen of the people became also the Anointed of the Lord. The distinction between Kings and rulers of any other kind is strictly immemorial; it is as old as anything that we know of the political institutions of our race. The distinction is clearly marked in the description which I read to you from Tacitus. He distinguishes in a marked way Reges and Duces, Kings and Leaders; Kings whose claim to rule rested on their birth, and leaders whose claim to rule rested on their personal merit. But from the same writer we learn that, though the distinction was so early established and so well understood, it still was not universal among all the branches of the Teutonic race. Of the German nations described by Tacitus, some, he expressly tells us, were governed by Kings, while others were not32. That is to say, each tribe or district had its own chief, its magistrate in peace and its leader in war, but the whole nation was not united under any one chief who had any claim to the special and mysterious privileges of kingship. That is to say, though we hear of kingship as far back as our accounts will carry us, yet kingship was not the oldest form of government among the Teutonic tribes. The King and his Kingdom came into being by the union of several distinct tribes or districts, which already existed under distinct leaders of their own, and in our own early history we can mark with great clearness the date and circumstances of the introduction of kingship. We should be well pleased to know what were the exact Teutonic words which Tacitus expressed by the Latin equivalents Rex and Dux. As for the latter at least, we can make a fair guess. The Teutonic chief who was not a King bore the title of Ealdorman in peace and of Heretoga in war. The former title needs no explanation. It still lives on among us, though with somewhat less than its ancient dignity. The other title of Heretoga, army-leader, exactly answering to the Latin Dux, has dropped out of our own language, but it survives in High-German under the form of Herzog, which is familiarly and correctly translated by Duke33. The Duces of Tacitus, there can be no doubt, were Ealdormen or Heretogan. It is less clear what the title was which he intended by Rex. Our word Cyning, King, is common to all the existing Teutonic tongues, and we find it as far back as we can trace the English language34. But it is not the only, nor seemingly the oldest, word to express the idea. In the oldest monument of Teutonic speech, the Gothic translation of the Scriptures, the word King, in any of its forms, is not found. The word there used is Thiudans35. And there is a third word Drihten, which in English is most commonly used in a religious sense36. I would ask you to bear with me while I plunge for a moment into some obsolete Teutonic etymologies, as I think that the analogies of these three words are not a little interesting. All three names come from, or are closely connected with, words meaning the race or people. One of those words, Cyn or Kin, we still keep in modern English with no change of sound and with very little change of meaning. Now, the word Cyning, in its shortened form King, either comes straight from the substantive Cyn, or else from a closely connected adjective Cyne, noble, just like the Latin generosus from Genus, which, let me add, is the same word as our English Cyn. Let no one delude you into thinking that King has anything to do with the canning or cunning man. The man who first said that it had had simply not learned his Old-English grammar37. It has to do with Cyn and Cyne, and it may be taken as “the noble one,” or, as ing is the Teutonic patronymic, any one that chooses may thus form Cyning from Cyn, and make the King, not the father of his people, but their offspring38. Now the other two names, Thiudans or Theoden, and Drihten, have dropped out of our language, and so have the two words with which they are connected, just as Cyning is connected with Cyn. Thiduans or Theoden comes from Thiuda or Theod, also meaning people, a word which you will recognize in many of the old Teutonic names, Theodric, Theodberht, Theodbald, and the like. So Drihten either comes straight from Driht, a family or company, or else, just like Cyn and Cyne, from an adjective driht meaning noble or lordly. All these three names expressing kingship have thus to do with words meaning the race or people. They imply the chief of a people, something more than the chief of a mere tribe or district. Now in our Old-English Chronicles, when they tell how the first English Conquerors, Hengest and Horsa, settled in Kent, they do not call them Cyningas but Heretogan, Leaders or Dukes. It is not till after some victories over the Britons that we hear that Hengest took the rice or kingdom, and that his son Æsc is called King. So in Wessex, the first conquerors Cerdic and Cynric are called Ealdormen when they land; but, when they have established a settled dominion at the expense of the Welsh, we read that they too took the rice, and the leaders of the West-Saxons are henceforth spoken of as Kings39. It is plain then that the first leaders of the English settlements in Britain, when they came over, bore only the lowlier title of Heretoga or Ealdorman; it was only when they had fought battles and found themselves at the head of a powerful and victorious settlement on the conquered soil that they were thought worthy of the higher title of Kings. And we may further believe that, with all their exploits they would not have been thought worthy of it, if they had not been held to come of the blood of the Gods, of the divine stock of Woden.

We thus see that kingship in the strict sense of the word, as distinguished from the government of Dukes or Ealdormen, had its beginning among the English in Britain, not in the very first moment of the Conquest, but in the years which immediately followed it, within the lifetime of the first generation of conquerors. The same distinction which we find among the Angles and Saxons we find also among the kindred nations of Scandinavia. When the Danes and Northmen began those invasions which led to such important settlements in Northern and Eastern England, we always find two marked classes of leaders, the Kings and the Jarls, the same word as Eorl. Of these the Jarls answer to the English Ealdormen40. The distinction is again clearly marked, when we read that the Old-Saxons, the Saxons of the mainland, were ruled, not by Kings, but by what our Latin writer is pleased to call Satraps– that is, of course, Dukes or Ealdormen41. But it is most strongly marked of all in several accounts where we read of nations which had been united under Kings falling back again upon the earlier dominion of these smaller local chiefs. Thus the Lombards in Italy, who had been led by Kings to their great conquest, are said for a while to have given up kingly government, and to have again set up a rule of independent Dukes. So the West-Saxons in our own island are said at one time to have cast away kingly government, and to have in the like sort fallen back on the rule of independent Ealdormen42. In all these cases, we should be glad to know more clearly than we do what was the exact distinction between the King and the Duke or Ealdorman. But it is plain that the King was the representative of a closer national unity, while the Ealdorman represented the tendency on the part of each tribe or district to claim independence for itself. The government of the Ealdorman may not have been less effective than that of the King. If we remember the distinction drawn by Tacitus as to the respective qualifications for the two offices, we may even believe that the rule of the Ealdorman may have been the more effective. But we may be sure that the Ealdorman was felt to be, in some way or other, less distant from the mass of his people than the King was; the place of King could be held only by one of the stock of Woden; the place of Ealdorman, it would seem, was open to any man who showed that he possessed the gifts which were needed in a leader of men.